This matter came before the Bellingham Hearing Examiner for hearing on the 12th day of March 2014 on the application of Affinity at Billings, LLC for a variance from provisions of the Bellingham Municipal Code requiring street improvements abutting the property at 341 Telegraph Road in Bellingham.
Testimony was received from Steve Sundin, Bellingham Planning and Community Development Department; and Robert Ketner, Applicant's Representative.
In addition to the Bellingham Municipal Code and Comprehensive Plan, the following documents were considered as part of the record: See Exhibit List.

I. FINDINGS OF FACT

1. Robert Ketner, Inland Construction, on behalf of Affinity at Billings, LLC, applied for a variance from requirements of the Bellingham Municipal Code requiring the construction of three-quarter standard street improvements to Telegraph Road abutting the property located at 341 Telegraph Road.
2. The subject property is located in Area 11 of the Meridian Neighborhood and is designated Commercial, Planned. It is included in Binding Site Plans BSP2003-00002 and BSP2009-00005.
3. The property is located between Telegraph Road and McLeod Road, east of Meridian Street and across Telegraph Road from the Home Depot property.
4. Binding Site Plan 2003-00002 was approved in 2004. Improvements to McLeod Road, sewer main and stormwater facilities were installed in accordance with the conditions of the binding site plan. The conditions also included dedication of an open space area abutting Telegraph Road for the restoration of Baker Creek. The restoration work has been completed and plantings established. Three-quarter street improvements to Telegraph Road abutting the open space tract were also required by the binding site plan but were not installed.
5. Binding Site Plan 2009-00005 was approved in April 2012. This binding site plan requires three-quarter street improvements to Telegraph Road abutting the Applicant's property, which is immediately adjacent to the City-owned open space.
6. A Critical Areas Permit has been issued for improvements to Telegraph Road that are consistent with the modified street section proposed in this application for variance.
7. Baker Creek runs in an east/west direction through the northern portion of the property and the City-owned tract. A row of mature evergreen (fir) trees is located within the right-of-way of Telegraph Road abutting the property. The north bank of the creek is steep, leading up to the row of fir trees.
8. The Applicant requests a reduced street section abutting the property and the open space tract. It proposes to reconfigure and restripe the existing travel lanes and to install a five-foot bicycle lane and a thickened asphalt edge. Standard three-quarter street improvements would require standard travel lanes, a bicycle lane, curb, gutter and sidewalk adjacent to the development.
9. Installation of the required three-quarter improvements would result in the loss of nearly all of the mature fir trees and the buffer between Baker Creek and the road. Significant bank stabilization work would be required and the effectiveness of the creek restoration work completed by the City would be reduced.
10. Currently sidewalks are located on the north side of Telegraph Road across from the property and extending east and west to Meridian Street. A sidewalk is also located on Telegraph Road to the west of the property on the south side of the street. A section of sidewalk is located on the south side of Telegraph Road to the east of the property, but not immediately adjacent to it. The proposal would include a mid-block crosswalk to allow pedestrians to cross to the sidewalk on the north side of the street.
11. The Applicants propose to develop a 154-unit age-restricted (55 and over) multi-family residential project and a 3,000 square foot commercial building on the property.
12. To the east of the property are two commercial properties, one developed with a single-family residence and one undeveloped. Other properties to the east are designated for multi-family residential uses. It is anticipated that standard street improvements will be installed on the south side of Telegraph Road as these properties develop. The Meridian Neighborhood Plan calls for installation of a signal at the intersection of Telegraph Road and Deemer Road, providing a controlled crossing for pedestrians.
13. Variances from the requirements of Title 18 of the BMC are subject to the criteria specified in BMC 18.48.010. Variances from the requirements of Title 13 of the BMC are subject to the criteria specified in BMC 13.08.050. Variances from required street standards are allowed if there are topographic, geologic, or other conditions that make construction of the required improvements difficult or undesirable, and granting the variance would not be unduly detrimental to the public welfare nor injurious to property or improvements in the area.
14. City staff has recommended approval of the proposed variance subject to conditions set forth in the Staff Report.
15. Public comment was received for this proposal. The comments express concerns relating to traffic and pedestrian safety on Telegraph Road. They indicate that sidewalks are needed on Telegraph Road to provide safe pedestrian connections to the commercial and residential developments in the area.
16. Although the proposal to eliminate the requirement for a sidewalk on the south side of Telegraph Road results in a situation that is not ideal for pedestrian safety, there are circumstances present that justify the granting of a variance. The proximity of Baker Creek, the steep slope and mature vegetation immediately adjacent to the travel lanes of Telegraph Road and the impacts development of a three-quater standard street would have on the creek, the trees and the City's restoration project, warrant reduction in the street standard, provided conditions are imposed to provide for pedestrian safety.
17. Granting the variance will not be unduly detrimental to the public welfare nor injurious to the property or improvements in the area provided conditions are imposed to protect pedestrian safety.

II. CONCLUSIONS OF LAW

1. The criteria for granting a variance from street standards/construction requirements for the subject property, as proposed, have been satisfied.
2. A variance should be granted, subject to conditions to provide for pedestrian safety.
3. Any Finding of Fact that should be denominated a Conclusion of Law shall be deemed to be a Conclusion of Law. Any Conclusion of Law that should be denominated a Finding of Fact shall be deemed to be a Finding of Fact.

III. ORDER

A variance is granted to reduce the required street standards/construction requirements for the subject property located at 341 Telegraph Road, to include reconfigured driving lanes, a thickened asphalt edge, controlled crosswalk, and a shared bicycle/pedestrian lane, generally as proposed, subject to the following conditions:
1. The developer shall install a pedestrian activated mid-block flashing crosswalk together with a concrete pedestrian refuge to the west of the subject property, allowing safe pedestrian passage between the north and south sides of Telegraph Road, in a location and in accordance with plans approved by the Public Works Department.
2. A pervious path/lane to be shared by cyclists and pedestrians shall be installed in accordance with plans approved by the Public Works Department, and of a width not less than six feet, on the south side of Telegraph Road abutting the subject property (including the development and the City's open space tract).
3. The remaining improvements to Telegraph Road shall be subject to review and approval of the Public Works Department.
4. Street improvements shall comply with all conditions imposed by the Critical Areas Permit issued for the project.
5. Ingress/egress to the property from Telegraph Road shall be limited to right in/right out only with a left-turn in restriction, in accordance with plans approved by the Public Works Department.
6. This variance is granted for the proposal as described in the materials and representations submitted in support of the application. Substantial changes in the nature of the proposed development shall require additional review and variance approval.

ENTERED this 26th day of March 2014.Bellingham Hearing Examiner
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Dawn Sturwold